All persons who aid, or counsel, or direct or join in the committal of a wrongful act are joint tortfeasors. Thus, when two or more persons commit tort acting in the furtherance of a common design, they are known as joint tortfeasors. They are to be distinguished from ‘independent tortfeasors’ who act independently of each other but concur to produce a single damage.
For example, two motorists driving negligently and coining from the opposite direction collide and a pedestrian is crushed between the two cars. These motorists are independent tortfeasors.
In Brook v Boot 09281 2 KB 578, A and B entered Z’s premises to search for an escape of gas. Each one of them, in turn applied naked light to the gas pipe. A’s application resulted in an explosion, causing damage to Z’s premises. In this case, even though the act of A alone had caused the explosion but both A and B were considered to be joint tortfeasors and thus liable for the damage.
“Sometimes common design may be imputed to persons who are in control of animals, if their animals happen to exhibit such an instinct. For example, if my dog or yours jointly worry X’s sheep, both of us will be deemed to be joint tortfeasors even though none of us had in fact the design to cause injury to X’s sheep” (Winfield). The common examples of joint tortfeasors are principal and agent, master and scram, and partners (vicarious liability).
Liability of Joint Tortfeasors
(a) Joint tortfeasors are jointly and severally liable
An action may be brought against anyone, any number, or all of them. If an action is brought against some of them only, it is considered in common law that a further action could not be bought against others because there was only one cause of action. However, this rule has been abolished by the Law Reform (Married Woman and Tortfeasors) Act, 1935 and an action against one or some of the joint tortfeasors is no bar to an action against the other tortfeasors, who would also have been liable for the same damage. A judgment obtained against all of them may be executed in full against anyone or more of them.
The object of the above stated provision is to avoid hardship to the plaintiff who could not recover the amount of the decree because the joint tortfeasor sued was found insolvent. The fact that the claim is barred by limitation as against one will not in itself free the others from liability [Harihar Pershad v Bholi Pershad (1907)6 CU 383].
It may be noted that liability of ‘independent tortfeasors’ is only several (i.e., there could be as many causes of action as the number of tortfeasors). Since they are severally liable, an action against one of them is no bar to an action against the other and a release of one of them do not results in the release of others.
(b) Release of one of the joint tortfeasors releases all others as well
The reason being that the cause of action, which is one and indivisible, having been released, all persons otherwise liable therefore are consequently released. Although the release of one of the joint tortfeasors releases others from liability, a mere covenant or agreement not to sue one of them does not have the same effect. Because such an agreement (or compromise) merely prevents the cause of action from being enforced against the particular wrong doer with whom it is entered into.
Thus, the acceptance of a sum of money from one of the joint tortfeasors in full discharge of his own personal liability does not operate as a release as far as the other joint tortfeasors are concerned as there is no full satisfaction of the claim.
In Khusro v N.A.Gazder (AIR 1970 SC 1468), the plaintiffs filed a suit against various defendants for defamation. Meanwhile one of the defendants tendered an unconditional apology to the plaintiffs. The plaintiffs accepted the apology, and a decree was passed accordingly. Held that this compromise could not be treated to be a full satisfaction for the tort alleged to have been committed by the defendants.
(c) Liability of the innocent joint tortfeasor
If, through no fault of his own, a person gets mixed up in the tortious acts of the others so as to facilitate their wrongdoing, he may incur no personal liability, but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrong doers.
(d) Right of tortfeasors inter-se contribution and indemnity
At common law no action for contribution was maintainable by one wrong-doer against another, although the one who sought contribution might have been compelled to satisfy the full damages. This is known as the rule in Merryweather v Nixan (1799) 8 TR 186. The rule, however, has been abrogated by the Law Reform act, 1935, according to which if one of the joint tortfeasors has been made to pay more than his share of damages, he can demand contribution in respect of the same from the other wrong-doers. The amount of contribution recoverable firm any person shall be just and equitable having regard to the extent of his responsibility for the damage (apportionment of liability).
There may be situations where the joint tortfeasor, who has been made to pay for the whole of the loss, may not be guilty at all and some other joint tortfeasor may be solely to blame for the wrongful act. In such a case the guilty tortfeasor must fully compensate that one who has actually paid compensation, or in other words, one joint tortfeasor must indemnify the other. Thus, an innocent master can claim complete contribution from his servant whose negligent act had made the master vicariously liable to the injured party.
The rule laid down in Merryweather case is not applicable in India. The Allahabad High Court is of the view that the rule is devoid of the basic principle of equity that there should be an equality of burden and benefit [ Dharni Dhar v Chandra Shekhar AIR 1951 Al l 774].